Shipman v. Gladden

• Decision Date: 30 April 1969
• Citation: 453 P.2d 921,253 Or. 192
• Parties: Andrew E. SHIPMAN, Respondent, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellant.
• Court: Oregon Supreme Court

Page 921

453 P.2d 921

253 Or. 192

Andrew E. SHIPMAN, Respondent, v. Clarence T. GLADDEN, Warden, Oregon State Penitentiary, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 9, 1968.

Decided April 30, 1969.

Helen B. Kalil, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the brief was Robert Y. Thornton, Atty. Gen.

Howard R. Lonergan, Portland, argued the cause and filed a brief for respondent.

Before PERRY, C.J. and McALLISTER, SLOAN, O'CONNELL, GOOD-WIN, DENECKE, and RODMAN, ^* JJ.

McALLISTER, Justice.

This is a post conviction proceeding in which the state appeals from an order of the trial court granting petitioner a delayed appeal. The questions raised are (1) whether the failure of petitioner's retained counsel to timely file a notice of appeal deprived petitioner of his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution, and (2) whether the Post Conviction Hearing Act authorizes the granting of a delayed appeal in order to rectify the violation of that constitutional right.

Petitioner was convicted by a jury of receiving and concealing stolen property and sentenced to the penitentiary for three years. He was represented at the trial by a retained attorney who recommended an appeal and agreed to appeal and case. The attorney timely prepared and served a notice of appeal, but neglected to file it, thus admittedly depriving petitioner of his right to appeal.

In the landmark case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the principle was established that denial to an accused in a capital case of the right to counsel infringes the due process clause of the Fourteenth Amendment. In framing the issue involved in that case the court said:

'* * * The sole inquiry which we are permitted to make is whether the federal Constitution was contravened (citations omitted); and as to that, we confine ourselves, as already suggested to the inquiry whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.' 77 L.Ed. at 162, 53 S.Ct. at 58.

And again the court restated the question as follows:

'* * * The question, however, which it is our duty, and within our power, to decide, is whether the denial of the assistance of counsel contravenes the due process clause of the Fourteenth Amendment to the federal Constitution.' 77 L.Ed. at 166, 53 S.Ct. at 60.

The court phrased its resolution of the question only in due process terms. It said:

'In the light of the facts outlined in the forepart of this opinion--the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives--we think the failure of the trial court to give them reasonable time and opportunity to secure counsel Was a clear denial of due process.

'But passing that, and assuming their inability, even if opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise A denial of due process within the meaning of the Fourteenth Amendment. * * *' (Emphasis supplied.) 77 L.Ed. at 171--172, 53 S.Ct. at 65.

The right to counsel in capital cases established in Powell v. Alabama was extended in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963) to noncapital cases. The court, referring to the earlier case of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), said:

'* * * It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. * * *' 372 U.S. at 339, 83 S.Ct. at 793, 9 L.Ed.2d at 802.

The court expressly overruled Betts v. Brady and reaffirmed the principles declared in Powell v. Alabama. See 372 U.S 335, 83 S.Ct. 792, 9 L.Ed.2d at 805. The right to counsel in the trial court established in Powell v. Alabama and Gideon v. Wainwright was extended to the appellate stage of the criminal prosecution by Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). It is clear that the opinion in Douglas v. California is based at least in part on the due process clause of the Fourteenth Amendment. The court said:

'We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the First appeal, granted as a matter of right to rich and poor alike (Cal.Penal Code §§ 1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California fornia Supreme Court after the District Court of Appeal had sustained his conviction (see Cal.Const., Art. VI, § 4c; Cal.Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within he Court's discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount To a denial of due process or an 'invidious discrimination.' * * *' (Latter emphasis supplied.) 372 U.S. at 356, 83 S.Ct. at 816, 9 L.Ed.2d at 814.

See, also, Harlan, J., dissenting, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d at 817. ¹

We need not decide whether a state must afford an appeal as a matter of right in all criminal cases. It is sufficient to point out that Oregon has always provided appellate review as a part of its criminal procedure. ² The statement of the Supreme Court about appellate review in Illinois is pertinent here.

'* * * Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations. * * *' Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891, at 898--899 (1956).

The due process right to assistance of counsel requires more than a Pro forma representation. In Powell v. Alabama, supra, it was emphasized that the accused was entitled to the 'effective' assistance of counsel. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the court said:

'The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. * * *' 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498.

In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the emphasis was on the crucial need for diligent representation by counsel at the pretrial stages of the prosecution, but the court recognized that the same crucial need was present at all "critical' stages of the proceedings.' The court said:

'* * * In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to 'critical' stages of the proceedings. The guarantee reads: 'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel For his defence.' (Emphasis supplied.) The plain wording of this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful 'defence." 388 U.S. at 224, 87 S.Ct. at 1931, 18 L.Ed.2d at 1156.

Since Douglas v. California has established appellate review as a critical stage of the criminal procedure we conclude that due process will not tolerate a deprivation of appellate review caused solely by the gross neglect of counsel. The failure to perform the simple procedure of timely filing a notice of appeal is not the 'effective' assistance of counsel required by Powell v. Alabama, nor the diligent advocacy required by Anders v. California. The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due process. This is equally true whether the negligent counsel has been appointed or retained. The 'invidious discrimination' is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably negligent.

Discrimination on account of poverty is not the only discrimination that violates the Fourteenth Amendment. This is illustrated by Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, 19 A.L.R.2d 784 (1951). In that case one Cook was convicted of murder in an Indiana court, was sentenced to life imprisonment and immediately confined in the state peniten...